State v. Magliano, 433

• Citation: 255 A.2d 470,7 Md.App. 286
• Decision Date: 23 June 1969
• Docket Number: No. 433,433
• Parties: STATE of Maryland v. Benjamin Barry MAGLIANO.
• Court: Court of Special Appeals of Maryland

Page 286

7 Md.App. 286

255 A.2d 470

STATE of Maryland v. Benjamin Barry MAGLIANO.

No. 433.

Court of Special Appeals of Maryland.

June 23, 1969.

Henry R. Lord, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Robert C. Stewart, Asst. State's Atty. for Baltimore City, Baltimore, on the brief, for appellant.

Alan H. Murrell, Baltimore, Phillip M. Sutley, Baltimore, on the brief, for appellee.

Before MURPHY, ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

In Fabian v. State, 3 Md.App. 270, 274-279, 239 A.2d 100, we examined the common law crime of escape, traced the history of the Maryland statutes proscribing escape and reviewed decisions of the Court of Appeals on the subject. We observed that, as developed in the common law, escape was of three kinds:

"1. By the person that hath the felon in his custody, and this is properly an escape; and 2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon. 3. By the party himself, which is of two kinds, viz. 1. Without any act of force, and this is a simple escape. 2. With an act of force, viz. by breach of prison'. 1 Hale P. C. 590 as quoted in Perkins, Criminal Law (1957) Ch. 5, p. 428.'

We concluded that it was the legislative intent under the statute in effect today, Md. Code, Art. 27, § 139, to create a new crime of escape, although analogous to the common law crime, and that the statutory crime encompasses both the common law 'simple escape' and 'breach of prison.' We noted that under the statute it was also a crime to aid or assist in an escape.

In Agresti v. State, 2 Md.App. 278, 234 A.2d 284 we discussed principals in the first degree, principals in the second degree, accessories before the fact and accessories after the fact. We stated that an accessory at common law may be made a principal by statute, as is the case in arson, Md.Code, Art. 27, § 6, and burglary, Md.Code, Art. 27, § 30(a). The statute creating the crime of escape, by providing that '(i)f any keeper, deputy, assistant keeper or other person shall aid or assist in the escape of any offender or person detained and confined * * *', as prescribed, shall be guilty of a felony, clearly includes a principal in the second degree. ¹ It appears also to make an accessory before the fact a principal; one whose guilty aid was rendered before the completion of the felony is usually a principal in the second degree or an accessory before the fact, depending upon whether he was present or absent at the time. But we do not feel that the intent of the statute was to make an accessory after the fact a principal in the light of its language-'* * * aid or assist in the escape * * *'. (Emphasis supplied.) Thus the aiding or assisting proscribed is not after the escape and a person cannot be an accessory after the fact if his guilty conduct did not occur after the commission of the felony itself.

One result of common law distinctions between principals on the one hand and accessories on the other, led to the rule that there could not be a conviction of the accessory before conviction of the principal. It has been said that 'the reason for this rule is very plain. If there is no principal, there can be no accessory; and the law presumes no one guilty until conviction.' Commonwealth v. Phillips, 16 Mass. 423, 425 (1820). Technical embarrassments to the prosecution of this kind have been obviated by legislative action in a number of jurisdictions. 'It is proper to say that almost everywhere the unavailability of the principal has ceased to be a bar to the conviction of an accessory before the fact.' However, '(t)he distinction between the principal and the accessory after the fact has been quite generally preserved, but there has been a very definite trend in the direction of removing procedural technicalities from this branch of the law.' Perkins on Criminal Law (1957) Ch. 6, § 8, pp. 589 and 593. Perkins found that the present state of the statutory law requires that the legislative changes in the common law rule, and the details of the trend, be spoken of as accomplishments in some states, rather than in more general terms. He said, at pages 593-594:

'Some of these enactments, for example, provide that the accessory after the fact may be tried in any court which shall have jurisdiction of the principal felon even if the act of accessoryship was committed outside of the state, adding, sometimes, that if both events occur within the state, but in different counties, the accessory may be tried in either one. Some authorize the trial, conviction and punishment of such an accessory even if the rpincipal 'cannot be taken so as to be prosecuted and punished,' or 'whether his principal has or has not been convicted,' or has been pardoned, or is dead, or has been acquitted.' ²

Maryland has not enacted a law changing the common law rule with regard to the conviction of a principal and accessory after the fact.

The appellee here was charged in an indictment containing one count reading as follows:

'The Jurors of the State of Maryland, for the body of the City of Baltimore, do on their oath present that James Vincent Galliard, late of said City, who was then and there legally detained and confined in the custody of the Warden of the Baltimore City Jail, on the seventeenth day of April, in the year of our Lord nineteen hundred and sixty-eight, at the City aforesaid, unlawfully and wilfully did escape from such legal detention and confinement, contrary to the form of the act of assembly, in such case made and provided, and against the peace, government and dignity of the State.

And the Jurors aforesaid, upon their oath aforesaid, do further present that BENJAMIN BARRY MAGLIANO, late of said City, well knowing the said James Vincent Galliard, to have done and committed the felony and Escape aforesaid, in manner and form aforesaid, afterwards, to wit, on the eighteenth day of April, in the year of our Lord nineteen hundred and sixty-eight, at the City aforesaid, was accessory thereto, and he, the said BENJAIMIN BARRY MAGLIANO, did then and there feloniously receive, harbor, comfort, counsel, maintain and assist, contrary to the form of the act of assembly, in such case made and provided, and against the peace, government and dignity of the State.'

He was thus charged with being an accessory after the fact to the felony of escape. ³ Prior to trial Magliano filed a motion to dismiss the indictment. The motion was granted after hearing and the State appealed.

The ground of the motion to dismiss was that at common law an accessory after the fact could not, without his express consent, be put upon separate trial until after the conviction fo the principal, that the principal here had not been convicted of the crime of escape and in fact could never be convicted because he was deceased and that Magliano had not consented to be tried on the charge. It alleged that the common law rule was in effect in Maryland as there had been no statute enacted to the contrary. At the hearing on the motion on 17 October 1968 it was stipulated that Galliard had been in the custody of the Warden of the Baltimore City Jail, that he left that custody, that he had never been indicted for 'escape', that he had not been tried or convicted of the escape and that he had been dead 'at least since 20th of April' 1968. There was no other evidence offered.

In a comprehensive opinion rendered upon its dismissal of the indictment the trial court found that in Maryland escape is a statutory felony and accessory after the fact to that felony is a common law offense; that at common law the conviction of the principal was essential to the trial of the accessory and the accessory could not, without his express consent, be put upon separate trial until after the conviction of the principal; and that the common law rule is still in full force and effect in Maryland. As hereinbefore indicated, we agree that in Maryland escape is a statutory felony and that accessory after the fact to that felony is a common law offense. And it is clear that, within the provisions of Art. 5 of the Declaration of Rights of the Constitution of Maryland of 1867, presently in effect, the common law is applicable. Art. 5 declares, in relevant part:

'That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity * * *.' ⁴

The provisions of Art. 5 make a distinction between the common law of England and the English statutes. 'The inhabitants of the State are declared to be entitled to the common law, without any restrictive words being used, and thus the common law is adopted in mass, so far at least as it is not inconsistent with the principles of that instrument (the Constitution), and the nature of our political institutions.' Dashiell v. Attorney General, 5 Har. & J. 392, 401. But with regard to the English statutes, the inhabitants were entitled only to those as existed on 4 July 1776 'and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity.' They must not only be applicable but must have been 'found applicable' or have been 'introduced, used and practiced' by the courts. It would appear that the State thus claims for the courts of Maryland a final decision as to the applicability of English statutes, a clear distinction between them and the common law. See Steiner, The Adoption of English Law in Maryland, 8 Yale Law Journal, pp. 353-361. As to which statutes by experience have been found to be...